POWER October 2012 - 30

New Approaches to
Project Mitigation
By Rick Glick
T
he First Law of Thermodynamics holds that the amount of
matter and energy in the universe is constant and that no
new matter or energy can be created. The corollary Second
Law is that when energy is put to use, unusable energy or entropy
results. One lesson-other than to beware of lawyers purporting to
lecture on physics-is that everything we do has a consequence.
The construction and operation of new power-generating facilities
have consequences. Regardless of the technology and fuel,
development and operation of any facility, whether fossil-fueled
or renewable, involves environmental trade-offs. Environmental
impacts require mitigation, and each state and federal agency
has its own view of the type and extent of mitigation required
before a permit is issued.
The rules regarding impacts to water and wetlands generally
follow this pattern: If a wetland is disturbed, equal or more acreage
of replacement wetlands must follow. If the facility results
in warmer water temperatures or depleted dissolved oxygen, the
project sponsor must take action to ensure standards are met.
Focus the Mitigation Effects
There is growing recognition that many of the mitigation procedures
imposed do little to protect the environment. Why? Because
the mitigation is directed at the point of impact-not where the
highest watershed outcomes can be achieved.
For example, a water temperature standard can be met by installing
a mechanical chiller, or through large-scale riparian revegetation
programs. The former hits the target immediately, while
the cooling effect from the latter may take years. But the chiller
takes energy to operate and results in cooling in the immediate
area of the discharge, while planting trees throughout the watershed
results in much broader ecosystem benefits. One doesn't need
to be an ecologist to embrace this concept; it's intuitive.
Agencies and the public understand and are beginning to employ
new approaches to regulatory compliance. The Environmental
Protection Agency (EPA) and state environmental regulatory agencies
have incorporated water quality trading principles into their
permit programs. For example, if nutrient loading is the concern, a
compliance program may be structured whereby the permittee pays
an upstream farm to capture runoff and apply it to land, for which
the permittee gets credit. Some states, like Oregon, have enacted
legislation to develop " ecosystem services markets " as state policy.
The concept is that a permittee could pay for allowing riparian
plantings or wetlands restoration on the landowner's property,
which would constitute compliance with permit conditions.
An interesting application of such ecomarkets solutions is
presented in the context of Federal Energy Regulatory Commission
(FERC) relicensing of Idaho Power Co.'s Hells Canyon Complex
(HCC). The HCC is an almost 1,200-MW hydroelectric facility
comprising three dams on the Snake River: Brownlee, Oxbow, and
Hells Canyon Dams. As part of the relicensing effort, Clean Water
Act (CWA) Section 401 requires certification from the affected
30
state that water quality standards will be maintained. Because
the Snake River is the border separating Idaho and Oregon, and
because the HCC discharges from both sides of the river, certification
is required from both states. The approach to addressing HCC
water quality impacts includes a combination of water quality
trading and water marketing.
Develop Ecomarket Solutions
The Snake River upstream of the HCC is heavily used, both for
withdrawals to serve irrigated agriculture and for municipal and
industrial wastewater discharge. The two most significant water
quality issues concerning the HCC are dissolved oxygen and
temperature. One solution to the environmental challenge posed
by the dissolved oxygen would be to install a mechanical aeration
device to pump oxygen into the largest reservoir's transition
zone. Another resolution would be to conduct a water quality
trade with an upstream discharger. Although both alternatives
would likely positively address regulatory requirements for the
dissolved oxygen requirement, the trade would provide better
outcomes both in the reservoir and in upstream river water quality.
It would also eliminate ongoing operation and maintenance
expenses, including the energy to operate the aerator.
Temperature presents a trickier challenge, but it is equally amenable
to an ecomarket approach. In its CWA Section 401 application,
Idaho Power has proposed a watershed approach to meet the
HCC temperature responsibility. There are engineered solutions to
meeting the applicable temperature standard, such as pulling cold
water from the bottom of Brownlee reservoir. The result would be
cooler temperatures immediately below the HCC, but nowhere else.
Idaho Power and federal fishery agencies strongly believe that fishery
habitat would not be significantly improved. At the request of
the agencies, Idaho Power is investigating the risk of pulling up 50
years of accumulated contaminants from the bottom of the reservoir.
The ecomarkets approach could put mitigation dollars where
they could best accomplish habitat improvement through watershed
restoration. The long-term environmental benefits could far
exceed those resulting from the engineered approach.
The need to implement forward-thinking solutions is pressing as
society confronts the trade-offs between growing energy demand
and environmental impacts. Ecomarket approaches offer a promising
opportunity to find cooperative, cost-effective solutions to
these problems that may provide better protection for the resource.
Ecomarkets do not supplant a vigorous regulatory scheme. Rather,
they should be seen as an important adjunct focused on delivering
the best environmental outcomes at the lowest cost. ■
-Rick Glick (rickglick@dwt.com) is a partner in Davis Wright
Tremaine's Environmental Practice Group. Davis Wright Tremaine
attorneys represent Idaho Power Co. in the FERC relicensing and
CWA Section 401 proceedings for the Hells Canyon Complex.
The views expressed herein are those of the author and are
independent of the firm's representation of its clients.
www.powermag.com
POWER | October 2012
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POWER October 2012

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